ABSTRACT
The law regulates some of society’s most important relationships through status. Yet social and legal changes can render statuses obsolete or ineffective. Two pressing examples are the debates surrounding worker classification and nonmarital relationship recognition. By some estimates, between one quarter and one third of all US workers are part of the gig economy. If these gig workers are classified as employees, many rights will flow to them by virtue of that status; if they are instead classified as independent contractors, they get almost none of them. This binary approach exists in the family law context as well. Over 35 million adults are in committed nonmarital relationships marked by some combination of intimacy, property sharing, cohabitation, and joint childrearing. But the law will treat the overwhelming majority of them as single, meaning that unlike spouses, they will find themselves without legal protections and subsidies throughout the relationship and at its end. The problem in both contexts is lack of fit between status regimes and emerging social realities.
This Article investigates the persistence of status-based regulation through the lenses of employment and marriage. By examining how the two statuses have evolved from their common origins in the Blackstonian household, it identifies the relevant features of status and the tradeoffs inherent in regulating through status. From the failures of employment and marriage to regulate gig workers and nonmarital partners, it identifies institutional design questions endemic to status-based regulation, having to do with the way the statuses are constituted through positive law, whether to regulate through a binary or plural status regime, and how to determine membership in, and entrance and exit from, status categories. Finally, the Article argues that these institutional design questions are inevitable because status-based regulation itself is inevitable – when it comes to regulating socially valuable relationships, there is really no other option.
Matsumura, Kaiponanea T, Breaking Down Status (August 27, 2020). Washington University Law Review, forthcoming.
First posted 2020-09-05 04:18:26
Leave a Reply